These concerns overlook the meaning and full substance of the established proposition that the Eighth Amendment is defined by “the evolving standards of decency that mark the progress of a maturing society.” [cite] Confirmed by repeated, consistent rulings of this Court, this principle requires that use of the death penalty be restrained. The rule of evolving standards of decency with specific marks on the way to full progress and mature judgment means that resort to the penalty must be reserved for the worst of crimes and limited in its instances of application. In most cases justice is not better served by terminating the life of the perpetrator rather than confining him and preserving the possibility that he and the system will find ways to allow him to understand the enormity of his offense. Difficulties in administering the penalty to ensure against its arbitrary and capricious application require adherence to a rule reserving its use, at this stage of evolving standards and in cases of crimes against individuals, for crimes that take the life of the victim.The attention given to the death penalty might seem a bit absurd given the limited number of people actually executed, even if we look to the days of yore before the current overabundance of litigation on the matter. The basic reason is that it hits to the core of our concern for our fellow citizens and residents overall, both their rights and security. After all, the basic trilogy often is cited as "life, liberty and property." The finality is another important aspect of the whole matter. The importance of saving even one life here [to add something] also calls to mind a Christian parable, a theme repeated in others that in part has a theme of answering why so much effort is given to one person, one who often seems unworthy of it:
-- Kennedy v. Louisiana (Justice Kennedy)
"Which of you men, if you had one hundred sheep, and lost one of them, wouldn’t leave the ninety-nine in the wilderness, and go after the one that was lost, until he found it? When he has found it, he carries it on his shoulders, rejoicing. When he comes home, he calls together his friends and his neighbors, saying to them, ‘Rejoice with me, for I have found my sheep which was lost!’ I tell you that even so there will be more joy in heaven over one sinner who repents, than over ninety-nine righteous people who need no repentance."
Thus, we have a few special cases of the Supreme Court addressing some final appeal in this area, including in the middle of their break. I cited one such matter and now there is another, by chance with the person doing the heinous act having the same last name. This time two justices (Ginsburg/Sotomayor*) would have granted the stay. Sotomayor has shown a willingness to put herself out there to protect the rights of prisoners in certain cases, but has not personally addressed the death penalty directly as a justice yet. Justice Breyer has, even if he did not join Ginsburg's dissent or Stevens' concurrence in the protocol case:
The death penalty itself, of course, brings with it serious risks, for example, risks of executing the wrong person, risks that unwarranted animus (in respect, e.g., to the race of victims), may play a role, risks that those convicted will find themselves on death row for many years, perhaps decades, to come. [cites omitted].Though this case also had other concerns (such as enough recognition of mitigating factors, which led a district court judge to grant habeas relief, later overturned on appeal), the new "cocktail" used was also cited as with the other Jackson. The case just cited (Baze v. Rees) requires some concern be provided when better alternatives are possible, but the fact Breyer and Stevens concurred on the matter underlines there is a lot of discretion still given. Thus, the use of pentobarbital (arising from foreign suppliers of the original drug not wanting to aid and abet capital punishment; the problem might still arise) was allowed. The concern arising (as Breyer cites, lethal injections for various reasons are not free from difficulties) led to an execution being filmed to help flag any problems.
When the cocktail case reached the Supreme Court a few years back, there addressing the safeguards used to ensure a paralyzing agent would not lead to the person being conscious but feeling the ultimate poison (leading at least one state to try a one drug cocktail without such an agent), at least one person I talked to who is strongly against the death penalty didn't really believe it was an issue. He saw it as a sort of makeweight to attack the death penalty through the side door by making it impossible to carry it out (see also, Alito's concurrence).
This isn't quite fair from my understanding of the issue, including per a discussion by someone with more direct knowledge of the matter (he is a defense lawyer and familiar with the practice) who talked about it on the Slate fray back then. There is some reason to be concerned about the flaws in the protocols used and the litigation hopefully will address the matter in a positive way. The methods were developed in at least a somewhat slipshod way (see, e.g., the opinions of Stevens and Ginsburg in Baze) and oversight over the carrying out of punishments is a core reason behind the Eighth Amendment concerns that drive the issue here. It might not go far enough, but the plurality opinion in Baze v. Rees and other cases provides some real guidance, particularly if lower court judges and others involved takes the barrier to an "objectively intolerable risk of harm” seriously, a risk that does not only arise (per Scalia/Thomas) if the government blatantly intends to inflict it by use of things like the rack.
It is partially a means to inhibit executions, particularly the foreign companies or governments who don't want their companies to help. Likewise, it is a way to keep the issue out there, a novel means in a way, while also showing that even lethal injections aren't some problem free way of officially killing people. We continue to be wary of executing even the usually rather horrible people involved here.
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* As with a Sound of Music allusion on Victorious, how many viewers of A.N.T. Farm appreciated a Sotomayor joke?! One of those "for the parents" things, though given the theme of the show, more appropriate here. It is a cute show; the upcoming Good Luck Charlie episode is as well. Not overly funny as such, but pleasantly cute, particularly if you like the characters.